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| David Janovsky |
For years, police killings, predominately of Black people, have dominated news and led to mass demonstrations. Countless investigations have exposed abuse and medical neglect in prisons and jails.
It's clear that there is a problem, but nobody knows the full scope of it. That's because there is no comprehensive data on how many people die while in government custody — despite a law that requires exactly that information.
In 2014, Congress reauthorized the Death in Custody Reporting Act.[1] The law had a vital and seemingly straightforward goal: Improve the U.S. Department of Justice's efforts to track how many people die in government custody around the country and the circumstances of their deaths, and study the data to identify ways to reduce the number of deaths going forward.
Eight years later, there's very little to show for the DOJ's effort to comply with the DCRA.
In a U.S. Senate hearing in September, the head of the DOJ office responsible for overseeing death in custody data had a new explanation for why its efforts have failed: It's actually Congress' fault.[2]
The department now says a handful of seemingly minor differences in wording between the 2014 version of the DCRA and an earlier version have tied its hands, preventing it from designing a program that actually works.[3]
There's no denying that the program in place now isn't working. In September, the U.S. Government Accountability Office released an audit of the department's data for fiscal year 2021.[4] It found that the DOJ numbers were substantially inaccurate. The department missed almost 1,000 potentially reportable deaths in custody that had been reported on elsewhere — to say nothing of deaths that have gone wholly unreported.
The audit also found that 70% of the records the department did have were missing at least one piece of information.
Even if all deaths were reported and the records were complete, the data they produce is so imprecise and jumbled, it would still be useless.
For some reason, the DOJ has convinced itself that a law designed to give it more tools to collect data on the number of people who die in custody in this country, and share that data with policymakers, has taken away its power to do just that. But it doesn't take a deep dive to see that the department has more flexibility than it claims.
According to the DOJ, the wording of the current version of the law prevents it from doing three key things it had done in the past: collect data directly from state and local agencies, assign the work of collection to the department's own statistics experts, and release the data to the public.
It used to do all of these things, and while the data was far from perfect — indeed, in some ways it was deeply flawed[5] — it was better and more transparent than anything that's been produced under the newer law.
Preventing these practices certainly wasn't the intent of Congress when it reauthorized the law in 2014. A bit of history is helpful to understand why.
When the first DCRA became law in 2000,[6] the DOJ's Bureau of Justice Statistics — whose name tells you about its expertise — became responsible for collecting death in custody data. It did so by reaching out directly to the thousands of local jails, state prisons and law enforcement agencies across the country.
The DCRA law lapsed in 2006, but the statistics bureau kept collecting data anyway.
It was still collecting that data when Congress passed the updated version of the law in 2014, and there's a paper trail that shows Congress thought it was simply making sure the data collection had the weight of a statute behind it. The U.S. House of Representatives
The purposes of the bill were to incentivize states to report data, extend the collection program to deaths in federal custody, and order the DOJ to make policy recommendations based on what the data revealed.
There's simply no suggestion that Congress thought reauthorizing the DCRA would mean anything about the existing collection would change. As former Rep. Bob Goodlatte, R-Va., then-chair of the Judiciary Committee, noted, "Because the Bureau of Justice Statistics has continued to collect the information … this bill will not impose any new cost on the agency."[8]
Even though Congress thought it was ensuring the continuation of an ongoing program, the DOJ is right in noting that there are some wording differences between the old and updated statutes. But these differences aren't as significant as the DOJ says.
For instance, the department says the new law prevents it from directly contacting local agencies, which account for the overwhelming majority of police departments and jails, and which come in contact with a mind-boggling number of people.[9] The basis of this prohibition, it says, is the provision in the statute saying that a "state shall report to the Attorney General … pursuant to guidelines established by the Attorney General, information regarding" deaths in custody.[10]
It's true that the language doesn't explicitly mention local governments as sources of information. But neither did the old law, which required a state to provide "assurances that it will follow guidelines established by the Attorney General in reporting … information regarding" deaths in custody.[11]
Neither version of the law has anything to say about local governments, except that deaths in their custody must be reported.
It's certainly plausible to read the new text and conclude that states should report data on behalf of localities. But it's hard to compare the statutes and conclude that the new one requires or prohibits anything different from the old.
The department says another source of trouble is a provision in the 2014 law that allows it to withhold some grant funding from states that don't report. Specifically, the law gives the attorney general the discretion to apply a 10% cut to a state's award under the Edward Byrne Memorial Justice Assistance Grant program, one of the most prominent federal law enforcement grants, if it fails to comply with data reporting requirements.
The DOJ says that this provision has actually impeded data collection. The reasoning gets bureaucratic and jargony fast, but the gist is that, by introducing this tool for compliance, Congress forced the department to assign data collection responsibilities to a bureau with less experience with this kind of work. Managing states' grant funding is a policy issue. Since the BJS is only supposed to conduct research, not do policy work, the DOJ decided it could no longer remain in charge of state-level data collection.
But the first version of the DCRA was also tied to funding: States had to certify that they would follow data reporting guidelines to be eligible for so-called truth-in-sentencing incentive grants. And this data was reported to the experts at BJS.
Finally, the department has taken the dubious position that a provision mandating a single report to Congress on how to reduce deaths in custody prevents it from publishing any other data. It points to another section of law that says it can only release statistical information for "the purpose for which it was obtained."[12]
This restriction didn't keep the department from publishing DCRA data under the old law, or in the interlude when there was no DCRA law. But now, the department has decided that the entire purpose of the DCRA is to facilitate the report to Congress — and since making data public wouldn't help the report, it can't release the data.
This interpretation is easily belied by the fact that DCRA data collection is supposed to go on in perpetuity, even after that single report is done. If the whole point of the law was to produce a report, wouldn't the collection end once the report is out?
It seems implausible that the real explanation is that the 2014 law prevents the DOJ from accurately collecting and reporting on the number of people who die in government custody. The more likely explanation is something the department itself admitted in a recent status report: It has chosen to read the law as narrowly as possible, and to not do anything it doesn't absolutely have to.
According to the report, the department pared back its more ambitious plans in favor of "provisions specifically required by the statute." This scaling-back meant collecting only the data "fields explicitly described in DCRA of 2013 and exclud[ing] any efforts" to check the quality of the data it received. The department wants to blame Congress, but it made these choices.
Indeed, as those passages suggest, the department hasn't always been so insistent on refusing to collect this data. In fact, it once proposed a far more comprehensive plan for DCRA data collection — one signed off on by then-Attorney General Loretta Lynch herself.[13] Nothing about the law has changed since then, so there's clearly room for the department to make better plans.
Credit where it's due: The department recently committed to a few overdue improvements to its DCRA collection, including auditing the data with information in the public record.[14] But as long as it maintains its position that the law imposes these imagined limits on its efforts, the department is committing itself to failure.
Keep in mind, collecting data on deaths in custody is just a small step toward actually reducing those deaths. Without that data, though, policymakers will be deprived of the best possible information for identifying the most meaningful reforms. Part of DCRA's legal mandate is for the DOJ to study how department policies affect deaths in custody.
Data that researchers are currently tracking to fill the void left by the government's DCRA failure illustrates the kinds of reforms that could be informed by more comprehensive information.
For instance, as law professor Andrea Armstrong testified at the Senate hearing in September, most in-custody, illness-related deaths in Louisiana were not related to conditions people had before they were incarcerated. That finding suggests that improving medical care should be a high priority to prevent in-custody deaths there.[15]
It's easy to cast DCRA as just another data failure. But at the root of each data point is a real person who lost their life while the government had an obligation to protect their welfare. And every failure to study those deaths is a missed opportunity to prevent others.
It doesn't have to be this way. This is an eminently solvable problem, if the DOJ stops talking itself out of sensible solutions. It can make meaningful progress toward understanding and preventing deaths in custody — if it wants to.
David Janovsky is an analyst at the Project On Government Oversight.
Disclosure: The author's organization has submitted statements to the DOJ and Congress advocating for DCRA reform.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.congress.gov/bill/113th-congress/house-bill/1447/text.
[2] "Uncounted Deaths in America's Prisons and Jails: How the Department of Justice Failed to Implement the Death in Custody Reporting Act": Hearing before the Senate Committee on Homeland Security and Government Affairs Permanent Subcommittee on Investigations (117th Cong. 2022) (statement of Maureen Henneberg, Deputy Assistant Attorney General, Office of Justice Programs), https://www.hsgac.senate.gov/imo/media/doc/Henneberg%20Testimony.pdf.
[3] Report of the Attorney General Pursuant to Section 6(e) of Executive Order 14074: Department of Justice Implementation (September 16, 2022), https://bja.ojp.gov/doc/DOJ-Implementation-of-DCRA-of-2013.pdf.
[4] https://www.hsgac.senate.gov/imo/media/doc/Goodwin%20Testimony.pdf.
[5] Duren Banks, Lance Couzens, and Michael Planty, Bureau of Justice Statistics, Assessment of Coverage in the Arrest-Related Deaths Program, NCJ 249099 (October 2015), https://bjs.ojp.gov/content/pub/pdf/acardp.pdf.
[6] Death in Custody Reporting Act of 2000, Pub. L. No. 106-297, https://www.congress.gov/106/plaws/publ297/PLAW-106publ297.pdf.
[7] https://www.congress.gov/congressional-report/113th-congress/house-report/285/1?overview=closed.
[8] House Judiciary Committee, Markup of the Kilah Davenport Child Protection Act of 2013 (H.R. 3627) and the Death in Custody Reporting Act of 2013 (H.R. 1447), December 4, 2013, https://docs.house.gov/meetings/JU/JU00/20131204/101567/HMKP-113-JU00-Transcript-20131204.pdf.
[9] Zhen Zeng, Bureau of Justice Statistics, Jail Inmates in 2016, NCJ251210 (February 2018), https://bjs.ojp.gov/content/pub/pdf/ji16.pdf.
[10] Death in Custody Reporting Act of 2013, Pub. L. No. 113-242, § 2(a), https://www.govinfo.gov/app/details/PLAW-113publ242.
[11] Death in Custody Reporting Act of 2000, Pub. L. No. 106-297, § 2, https://www.congress.gov/106/plaws/publ297/PLAW-106publ297.pdf.
[12] 34 U.S.C. § 10231(a), https://www.law.cornell.edu/uscode/text/34/10231.
[13] New Collection: Death in Custody Reporting Act Collection, 81 Fed. Reg. 91948 (proposed December 19, 2016), https://www.federalregister.gov/documents/2016/12/19/2016-30396/agency-information-collection-activitiesproposed-collection-comments-requested-new-collection-death.
[14] Report of the Attorney General Pursuant to Section 6(e) of Executive Order 14074: Department of Justice Implementation (September 16, 2022), https://bja.ojp.gov/doc/DOJ-Implementation-of-DCRA-of-2013.pdf.
[15] "Uncounted Deaths in America's Prisons and Jails: How the Department of Justice Failed to Implement the Death in Custody Reporting Act": Hearing before the Senate Committee on Homeland Security and Government Affairs Permanent Subcommittee on Investigations (117th Cong. 2022) (statement of Professor Andrea Armstrong, Loyola University New Orleans, College of Law), https://www.hsgac.senate.gov/imo/media/doc/Armstrong%20Testimony.pdf.